Top 5 Prenup Myths Debunked

There is a LOT of misinformation floating around today regarding prenups. If you are getting married and doing your research online, you will come across a lot of opinions and a lot of information, and not all of it will be true. Here are some of the most common misconceptions about prenups:

MYTH #1: "You can stipulate to anything you want in a prenup (cheating clauses, sunset clauses)"

REALITY: This is completely false. In California, you cannot have any clause of your prenup be "promitive of dissolution" or against public policy. In addition, prenups cannot contain anything related to children, for example, custody or child support. That is because the law is very strict that custody is always determined by what is in the best interest of the children. Parents do not get to pre-decide what that will be. Child support also must be, at a minimum, the California guideline amount (if you are curious there are many online calculators you can use to find out what this would be). You cannot contract with your spouse to pay less than guideline.

MYTH #2: "Having a prenup is like calling it quits before you begin."

REALITY: Reality check - 50% of marriages end in divorce. Having a prenup doesn't lead to divorce, getting married does!

MYTH: "A prenup can replace a will and other estate planning docs."

REALITY: This is mostly untrue with one exception. Marriage can end in one of two ways: death or divorce. For marriages that end in divorce, a prenup will determine the division of assets. If a marriage ends because one spouse dies, then your estate plan (will, trust, etc) is what determines where your assets go - NOT YOUR PRENUP. Wills and trusts have drafting and execution formalities that must be adhered to in order to be legal (for example, they must be witnessed, whereas prenups do not need to be), and you cannot just combine a will into your prenup - and vise versa. The only way prenups work in tandem with estate planning is that a prenup can prevent the formation of a community estate, which means you can be free to devise all your property through your will, or put all your property into a trust, without worrying that half of it belongs to your spouse through community property laws.

MYTH #3: "We don’t need a prenup because we trust each other completely (and you shouldn’t marry someone you don’t trust)."

REALITY: I truly and sincerely believe that you do completely trust your spouse when you get married. It would be strange, to say the least, to marry someone you did not trust. But I cannot say this enough - people change. If you've read the other articles and FAQ's on this website, you know that the #1 thing I heard from my divorcing clients when that was my primary field of law was that they felt like they did not know the person they were getting a divorce from. And this was from people who had been married 10, 20, even 35 years. Conflict, particularly over money, can also drive normally sane people into madness. I've seen couples fight over houseplants. And I can guarantee that when they got married it was inconceivable to them that they could ever end up there - but sadly, there they were. Human beings are complex, messy, and emotional creatures, and to be quite frank, sh*t happens, and people change. Trusting someone today does not mean they are exempt from human nature.

MYTH #4: "We don't need a prenup because we don't have any assets."

REALITY: This is probably one of the most common things I hear repeated time and time again. There is a misconception in the media that prenups are only for the very wealthy. While very wealthy people may get prenups in higher numbers, that doesn't mean that they need them more than anyone else. Prenups are meant to predetermine the division of marital assets - premarital assets are not really relevant to a prenup, except to the extent that they may become marital through commingling. But a prenup is really to protect what you MIGHT have someday, not what you come into the marriage with.

MYTH #5: "A prenup makes it easier to consider divorce an option if things get tough."

REALITY: That mindset presumes that people without a prenup only stay married because it is slightly easier than getting a divorce. While a prenup does make the legality steps of the divorce process itself significantly easier (emotionally, financially, and time-wise) than it would be if you did not have one, divorce is never easy. A prenup will not change the fact that you need to file documents in court, you both will need to hire (and pay) attorneys, and you will need to complete all the legal steps of a divorce, including exchanging financial documents and then waiting the mandatory 6-months for your divorce to be finalized. I have never had a client say to me that they got divorced because they knew it would be easy since they had a prenup. I have, however, had many clients say during their divorce how much they wish they had a prenup.